Guardianship

01/03/2019

Sometimes guardianships and conservatorships are necessary, when some members of a family believe a loved one is becoming mentally or physically incapacitated. However, there are other options, according to On Common Ground News in the article “Alternatives to guardianship and conservatorship.”

What is the difference between the two? A guardianship takes away a person’s right to consent to medical treatment, establish a residence, sign a contract or even to marry. A conservatorship lets the appointee manage their ward’s finances and assets, buy and sell businesses and enter into commercial transactions.

One is a petition for a temporary medical consent guardian. Based on the facts in the petition, the court can determine whether there is cause, to believe the proposed medical consent ward needs a temporary medical consent guardian immediately. This occurs after all the preliminary steps have been taken, which includes a hearing. That temporary guardianship terminates, when either the court removes it, if a permanent guardian is appointed, when the hospitalization or stay in another healthcare facility ends or sixty days after the appointment is made.

An alternative option to conservatorship is the Durable Power of Attorney (DPA), which permits a competent individual to name another person as their legal representative regarding finances and other matters. There can be specific instructions, and this also can include an agent who is named to make health care decisions. A DPA is broader in power than a living will and applies any time the individual becomes incapable of either making or communicating health care decisions on their own behalf.

If you are a resident of Georgia, the state’s Advance Directives for Health Care combines the living will and health care power of attorney into one document. This gives instructions regarding how the person wants medical decisions to be made. Note that every state has its own laws and processes for these documents.

A Special Needs Trust (SNT) is a trust that can be established for a person with a disability and the assets can be used in specific ways. This kind of trust permits a person with a disability to have access to funds that might make them ineligible for certain types of programs funded by the state or federal government. The SNT allows for much more flexibility than a conservatorship and should be considered for a special needs individual first.

An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances.

11/05/2018

There are many myths floating around about wills, trusts and estate planning. Those myths can easily confuse people who haven’t taken the time to bust them, before getting on to the real work … taking care of the family, according to the Cleveland Jewish News in “Estate planning myths common, but debunkable.”

One common myth is that a trust is completely creditor protected. While there are some trusts that achieve this goal, there are many that don’t.

Another myth is that once an estate plan is completed, there’s no need to revisit or make changes.

Perhaps the biggest myth around estate plans, is that they are only needed by wealthy people. Actually, everyone needs a will and oftentimes, a trust.

People chat with their friends and neighbors and pick up snippets of information, which is usually incorrect. As with any kind of story, once a piece of information has moved through a few different people, it becomes confusing, even if it started out accurate.

Unless it comes from an estate planning attorney, don’t get any legal advice at a neighborhood or family gathering. The results can be disastrous.

If you don’t set up guardianship for your minor children, then the court will appoint a guardian. It’s entirely possible that it may be a person you would never have wanted to raise your children. If a separate financial trustee is not named, there won’t be any checks and balances on how the money left for your children is spent.

If you don’t have an estate plan in place, and especially if your family includes minor children, make an appointment to speak with an estate planning attorney who can advise you on an estate plan that fits your unique circumstances.

11/25/2016

Being disinherited can often come as a shock to family members. Often the person involved is not aware of any wrongdoing on their part that would cause the decision.

Even people who do not get along well with their relatives tend to not think it will result in being disinherited. However, estate planning attorneys can often predict what types of behaviors might lead a person to be disinherited because the same patterns occur over and over again.

09/26/2016

Sam Huff is best known for his days as an NFL linebacker for the Washington Redskins. The hard-hitting defensive player was great enough to make the Pro Football Hall of Fame. His playing days, however, are well past him.

Now, he suffers from dementia and needs help taking care of himself on a daily basis.

Huff had been living at home with a woman who describes herself as his life-partner, Carolyn Holder. His daughter, Catherine Huff, picked him up to take him to a dentist appointment in March, but she never returned him to his home. Instead, she took Huff home with her and has been taking care of him there.

Now the daughter and the partner are at odds and both want to have responsibility for him. They have both asked the court for guardianship.

For his part, Huff did sign a power of attorney in 2011 that gave authority to the daughter. An initial advanced medical directive gave authority over medical decisions to the partner, but that was later changed to give the authority to the daughter.

Perhaps the most unusual aspect of this case is that no one appears to be trying to change Huff's estate plan in their favor and neither side is accusing the other of trying to do so. That is all too often the case when people fight over who should care for an elderly loved one, but in this case it appears that both sides have good intentions and would just like to take care of Huff.

01/15/2016

Nearly every state has a similar process when an elderly person needs help handling their affairs and they do not have powers of attorney in place. A guardianship petition is submitted to probate court and someone is appointed guardian to take care of the elderly person's financial and personal affairs.

However, many people believe there is an inherent bias in most states' guardianship laws.

Guardians are required to make regular reports about the financial affairs of the ward. Although it does not always work, this helps prevent the guardian from taking financial advantage of the ward. However, most of the time guardians are not required to report on the well-being and care of the elderly person.

Consequently, courts do not know if the ward is being abused or neglected unless a third-party makes a report.

Some states are attempting to change this bias by updating their laws to add new reporting requirements.

Changing guardianship laws to make elder abuse less likely is good and important work. No elderly person should have to suffer from financial or personal abuse.

However, it is also important not to rely on guardianship laws as the only way to take care of incapacitated elderly people. Everyone should get the necessary powers of attorney in place before they become incapacitated to make it less likely that a court will see the need to appoint a guardian in the first place.

12/29/2015

Parents of college-bound freshman age 18 and older need to have several documents prepared, according to a NewsMax article, “End-of-Life Lessons of Bobbi Kristina's Tragic Death.” A healthcare designation, a living will, HIPPA release, and durable power of attorney should be standard documents prepared for the ‘new’ adult so that parents can act on behalf of their kids if the unforeseen occurs.

Bobbi Kristina was only 22 and the only child of the late Whitney Houston and Bobby Brown. She passed away after a very public six-month family fight over how to treat the comatose Brown, after she was found face-down in a bathtub in the Atlanta townhome she shared with her boyfriend Nick Gordon.

This story illustrates the difficulties families deal with when confronted with complex healthcare decisions. The article emphasizes the need to create advance medical directives to help family members of patients. These end-of-life instructions should be in a legal document, prepared by an estate planning attorney so that it satisfies the requirements of state law. The directives should include:

A Healthcare Designation. This is a very critical part of an advance directive, as a “healthcare designation” or “healthcare proxy” names an individual you authorized to make medical decisions for you, if you are unable to do so on your own. This friend or relative is given what is also called “durable healthcare power of attorney (POA).” This allows them to speak on your behalf.

A HIPPA Release. This allows your proxy to communicate with your healthcare providers about your care.

A Living Will. This formal statement communicates your wishes for medical care should you end up in a “persistent vegetative state” with little or no chance of recovery, and you can’t communicate your wishes. Talk to an estate planning attorney as every state has its own regulations for living wills.

Treatment Restrictions. You should spell out exactly the circumstances under which you would want to have life-sustaining care or when you want to pass, many times with only medication for pain. Distribute copies to your doctor, family members, and (if appropriate) close friends. The article lists several specific treatments you might want to address:

A Do Not Resuscitate (DNR) Order. This states that you do not want providers to perform extraordinary measures (like CPR) if your heart or breathing stops.

Mechanical Ventilation. State when and for how long you would want a mechanical respirator to take over your breathing.

Nutritional Assistance. Discuss your feelings about nutrition if you could only be fed through an intravenous or stomach tube.

Dialysis. Kidney failure can be the first step toward death in terminal patients. State parameters around which you would want this treatment.

Brain Death. State what you would want if your brain function was deemed minimal or immeasurable.

Organ Donation. Make your wishes known if you want to donate your organs and tissues for transplantation.

It’s no shock that end-of-life planning is a difficult topic to discuss. Just 26.3% of Americans have completed advance directives, according to a 2013 study. But as the Bobbi Kristina Brown case shows, it’s important and never too early to discuss this topic with spouses, family members, partners, adult children, and parents.

11/12/2015

Guardian systems across the country are increasingly overwhelmed by charges of abuse and financial fraud, described by an in-depth report by TheWall Street Journal's,"Abuses Plague Guardianship Systems Across the Country." The stories of elderly people with substantial assets who are being fleeced by those appointed by courts to protect them are infuriating. The system seems to only serve those who are profiting from it, at a tremendous cost to the victims.

"These laws which were designed to protect the vulnerable are being used against them to exploit them," Dr. Sam Sugar is quoted as saying. Sugar is the founder of Americans Against Abusive Probate Guardianship, an advocacy group.

Because guardianship systems vary by state and county and record-keeping systems are inconsistent, exact national data is unavailable. Nevertheless, the report notes that the roughly 1.5 million adult guardianships in the U.S. deal with about $273 billion in assets.

These issues are getting more urgent as aging baby boomers will cause the population of seniors to just about double by 2050, according to Census estimates. For example, in New Jersey, the number of adult guardianships added annually increased 21% from 2009 to 2014, to 2,689 cases.

Guardians who have proper judicial oversight generally do a good job protecting elderly people from exploitation by acquaintances and others. But the worst cases are those where there is no guardian.

The expenses that are part of a guardianship—including legal representation for both guardians and wards—typically get paid from the ward's assets. Some jurisdictions have a public guardian's office that handles cases for indigent clients. But this financial arrangement, critics say, encourages guardians to perpetuate guardianships indefinitely.

Good comprehensive estate planning is often the best way to avoid guardianship issues. Discuss it with your lawyer sooner rather than later.

11/09/2015

Health care expenses are the main concern among Americans who are 65 and older, according to the last Halloween story of the season, "What Spooks Us Most About Money," from Forbes. In comparison, millennials have their own financial worries, chiefly the ability to pay their rent or make mortgage payments.

But here's the scariest part of the survey: about 21% of the 50+ respondents said their financial fears are holding them back from reaching their goals. That's gotta give you some estate planning chills! Many people 50+ are also undoubtedly scared of what will happen to their financial assets after they die and whether their loved ones will receive proper care.

The whole subject of estate planning gives some people the willies. It is scary to think about dying and planning for what may happen after your death. But not thinking about it could wind up haunting your family for years to come.

If you fail to name guardians for your children in your will, the court might name them for you. And if you don't have a written estate plan, your wealth could go to heirs you hardly know or do not want to have an inheritance.

Sit down with a qualified estate planning attorney and have him or her draw up a will or trust, if you haven't done so already. Ask if it would be wise for you to have one or more trusts, which can be extremely helpful if you have children or grandchildren with special needs.

09/24/2015

Perhaps a more palatable way to frame the difficult question of what would happen to your child if both parents die is this: “Do you want your in-laws to raise your child?”

That could be the question that drives a couple to meet with an estate planning attorney. According to Investor’s Business Daily in “When Couples Have Their First Baby, Advisors Deliver,” young couples need estate planning, especially when they are expecting their first child. The attorney will help them address guardianship issues, draft a living will and prepare other important documents.

Life insurance and long-term disability coverage become very important. Some folks believe they are covered because they have disability insurance at work. This may not be enough.

Don't let financial stress add to the stress of raising a child. Sit down with a qualified estate planning attorney and go over some of the important issues that now must be addressed as you start your family.

Designate Your Beneficiaries. You can list your beneficiaries on your retirement accounts (401(k), 403(b), IRA, etc.) when you complete the application. Likewise, you can designate your beneficiaries on bank and investment accounts by setting up a TOD (Transfer on Death) designation. It’s easy to do and costs nothing. Remember that beneficiary designations supersede any wish you make in a will.

Draft Your Will. A will is a legal document and is a written statement of your intentions, including where you want your possessions to go and how you want the orderly disposition to happen. See an attorney, as each state has different laws.

State Your Health Care Wishes. Use a Health Care Proxy to let someone you trust make health care decisions and carry out your health care wishes in the event that you are incapacitated.

Sign a Durable Power of Attorney. This form allows someone you trust to make financial decisions in the event you are unable to do so. There is a huge difference between a limited power and durable power of attorney. Talk to your estate planning attorney about these documents.

An experienced estate planning attorney can spend time with you and review your estate issues, complete a will, health care proxy, durable power of attorney, and check beneficiaries, as well as any tax issues. Use an attorney who specializes in this area to ensure your wishes are properly documented and you achieve what you are trying to accomplish, now and in the future.